A child cannot legally decide who they want to live with until the age of 16 unless there is a child arrangements order in place extending that age to 17 or 18 years old.
However, in the same breath, the Court will seriously consider the wishes and feelings of a child, especially when they are at an age where they have an understanding as to what is happening around them and it is clear that they were particularly thriving living with a particular parent.
Clearly, serious consideration is also given if a child will be or is likely to come to harm in one of the parents care.
There are many factors that are taken into account.
Do We Have To Go To Court?
If you’re in agreement, then no. The Court is not going to make an Order if there is no reason to make that Order, i.e. there is already an agreement in place.
The Court must not make an Order unless the Court considers that doing so would be better for the child than making no Order at all – this is known as the “no order principle”. There is no reason for the Court to intervene and make an Order unless it can be shown that it would be in the child’s best interests to do so.
If you’re no in agreement, then this makes matters difficult, however, there are other options other than simply running to the Court with an application in hand. Parents should consider mediation to try to reach an agreement in relation to child arrangements. If an agreement is reached, then you are likely to be avoiding lengthy Court proceedings and animosity with the other parent.
Making A Court Application – What Orders Are Available?
If mediation does not work or there are reasons as to why mediation would not be suitable (i.e. domestic violence), then either parent can make an application to the Court seeking that the Court intervene and assist the parties.
The Court that is available is called a child arrangements order, and this can determine:
a. An Order about with whom a child is to live; and
b. How often they spend with the parents and for how long.
This article purposely does not make reference to specific issue orders or prohibited steps orders, however further information can be found here.
The Court makes a decision based on what the Court believes to be in the child’s best interests. The child’s welfare is always of first concern, however, the Court will also consider the following factors:
a. The child’s wishes and feelings;
b. The child’s physical, emotional and educational needs;
c. The child’s age, sex, background and any other relevant factors;
d. Any harm the child has suffered or is likely to suffer in the future;
e. Are and how are the child’s parents able to meet that child’s needs;
f. How may the child be affected by any change in the current circumstances.
Whilst the Court consider points above, it is important to remember that the child’s age will determine how much influence they have on the Court with respect to their wishes and feelings. A child who is prepubescent or is in their teenage years will have much more influence in respect to their wishes and feelings than a much younger child.
Married vs Unmarried
For the avoidance of doubt, the process above is the same for both married couples and couples that are not married, so long as it is identified that the father has parental responsibility of the child in question.
The information provided in this article is not intended to constitute legal advice and you should take full and comprehensive legal advice on your individual circumstances by a fully qualified Solicitor before you embark on any course of action.
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